The threat of negligent hiring lawsuits is thought to play an important role in the widespread use of criminal background checks among US employers. This article examines the construction of negligent hiring within the trade literature of the human resources (HR) field using a qualitative content analysis. While courts tend to view criminal record checks as unnecessary for occupations that do not carry foreseeable risks, the article finds that the HR field has broadly endorsed criminal record checks as the default practice for screening job candidates. The article argues that this divergence stems from the structured uncertainty of compliance under the common law tort of negligent hiring, which shapes organizational behavior in ways that defy the substantive clarity of relevant case law.
Prior research documents widespread deficiencies in the quality and completeness of official criminal records in the United States. In an era when the social reach of criminal records has expanded to an unprecedented degree, these deficiencies carry serious consequences for criminal record subjects. The present study develops the concept of punitive ambiguity to characterize the burdens of incomplete criminal records and examines how they vary at the state level, providing evidence that punitive ambiguity is racially patterned. Using data from the biennial Surveys of State Criminal History Information Systems, multivariate analyses find that states where African Americans make up larger shares of felony record populations report rap sheet dispositions at significantly lower levels, pairing low criminal record data quality with extensive legally-mandated background screening. The results carry implications for understanding the racialized burdens of a criminal record, as well as broader processes in the development of the American penal state that combine harsh formal punishments with chronic administrative neglect.
What factors affect whether ordinary citizens believe that workplace decisions involving African‐American employees rise to the level of discrimination? When do observers believe targets of possible race discrimination should consider mobilizing the law? We use a factorial design vignette study administered to a nationally representative sample of 2,087 ordinary people to address these questions. The “vigilance hypothesis” predicts that minorities will be more likely to perceive discrimination than whites. Our analysis partially confirms this: African Americans perceive anti‐Black discrimination at higher rates than do whites and Latinos, while Latinos do not show a significant difference from whites. Where respondents believe discrimination occurred, we analyze what influences whether respondents might recommend legal mobilization. The “cynicism hypothesis” suggests that people of color may be less likely to favor using law. We find, however, that African‐American and Latino respondents express more confidence in civil litigation, compared to whites. Further, African Americans express the strongest support for legal mobilization (recommending that a “friend” contact an attorney), while whites and Latinos do not differ in mobilization recommendations.
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